The Public Land Trust

1
The Public Land Trust

• In 1976, the Supreme Court referred to the
  public lands thus entrusted to Congress. Trusts
  are usually matters of law written or otherwise
  documented in detail between trustors and
  trustees. The public land trust must be
  documented in history somewhere.
• Where is it written?
• What is its object or purpose?
• What, if any are the limitations placed upon the
  trustee for its exercise?

2
The year 1780 The American Revolution was
going badly for the states.Rhode Island and
Maryland were refusing to join the confederacy
under the Articles of Confederation.
3
The divisive issue was the claims to the western
former Crown lands that were being made by
certain of the states. The land-locked states,
specifically Maryland and Rhode Island, were
unable to make land claims. They saw themselves
disadvantaged, relative to the other states, as
to political and financial wealth. For this
reason, these two states would not join the
Confederacy. This was an embarrassment to the
confederacy and a political wedge issue for the
British.
4
Resolution of these embarrassments was deemed
by the Continental Congress to be essential to
the stability of the general confederacy and
also essential to public credit and confidence,
to the support of our army, to the vigor of our
councils, and success of our measures, to our
tranquility at home, our reputation abroad, to
our very existence as a free, sovereign, and
independent people ... and so necessary to the
happy establishment of the Federal Union,
(Continental Congress, September 6, 1780)
5
(No Transcript)
6
Resolved, that it be earnestly recommended to
those States who have claims to the Western
country, to pass such laws, and give their
delegates in Congress such powers as may
effectually remove the only obstacle to a final
ratification of the articles of confederation
(Resolution of the Continental Congress of
September 6, 1780)
7
(1) Resolved, That the unappropriated lands
that may be ceded or relinquished to the United
States, by any particular states, pursuant to the
recommendation of Congress of the 6 day of
September last, shall be granted and disposed of
for the common benefit of all the United States
that shall be members of the federal union, (2)
and be settled and formed into distinct
republican states, (3) which shall become members
of the federal union, and have the same rights of
sovereignty, freedom and independence, as the
other states that each state which shall be so
formed shall contain a suitable extent of
territory, and that upon such cession being
made by any State and approved and accepted by
Congress, (4) the United States shall guaranty
the remaining territory of the said States
respectively. ... (5) That the said lands
shall be granted and settled at such times and
under such regulations as shall hereafter be
agreed on by the United States in Congress
assembled, or any nine or more of them ....
Resolution of the Continental Congress, October
10, 1780
8
Do the benefits of the trust established under
the Resolution of October 1780 belong only to the
states established out of those territories which
were ceded to the United States by certain of the
original states?
9

• These solemn compacts, invited by Congress in a
  resolution declaring the purposes to which the
  proceeds of these lands should be applied,
  originating before the constitution, and forming
  the basis on which it was made, bound the United
  States to a particular course of policy in
  relation to them by ties as strong as can be
  invented to secure the faith of nations.
• President Andrew Jackson, Veto of the Land
  Bill, 1833.

10
Resolution of 1780 Constitution of
1787

• Article IV, sec. 3, cl. 2, the Property Clause
• The Congress shall have the power to dispose of
  and make all needful rules and regulations
  respecting the territory or other property
  belonging to the United States

• 1. Resolved, That the unappropriated lands that
  may be ceded or relinquished to the United
  States, by any particular states, pursuant to the
  recommendation of Congress of the 6 day of
  September last, shall be granted and disposed of
  for the common benefit of all the United States
  ...

11
Resolution of 1780 Constitution of
1787

• Article IV, sec. 4, the Guarantee Clause
• The United States shall guarantee to every state
  in this union a Republican form of government,
  ....

• 2. ... and be settled and formed into distinct
  republican states ....
• (Political accountability on the part of those
  who would wield the power.)

12
Resolution of 1780
Constitution of 1787

• Article IV, sec. 3, cl. 1, the Admissions Clause
  
• New states may be admitted by the Congress
  into this union but no new state shall be formed
  or erected within the jurisdiction of any other
  state nor any state be formed by the junction of
  two or more states or parts of states, without
  the consent of the legislatures of the states
  concerned as well as of the Congress (Also the
  Enclave and Claims Clauses)

• 3. ... distinct republican States, which shall
  become members of the federal union ....

13
Resolution of 1780
Constitution of 1787

• 4. ... the United States shall guaranty the
  remaining territory of the said States
  respectively.
• All objections and scruples (to the acquisition
  of land by the U.S.) are here also obviated by
  requiring the concurrence of the States
  concerned, in every such establishment. Madison,
  Federalist 43.

• Article I, sec. 8 cl. 17, the Enclave Clause
• The Congress shall have power to ... exercise
  (exclusive legislation in all cases whatsoever)
  over places purchased by the consent of the
  legislature of the state in which the same shall
  be, for the erection of forts, magazines,
  arsenals, dock-yards, and other needful
  buildings. (Also, Claims and Admissions clauses)

14
Resolution of 1780
Constitution of 1787

• Article IV, sec. 3, cl. 2, Claims Clause
• and nothing in this Constitution shall be so
  construed as to prejudice any claims of the
  United States, or of any particular state.

• 4 contd. ... the United States shall guaranty
  the remaining territory of the said States
  respectively.
• Lordship of the soil remains in full perfection
  with every state and this constitutes one of
  the most valuable and powerful appendages of
  sovereignty, Tench Coxe, Publisher,
  Pennsylvania, circa 1788

15
Resolution of 1780
Constitution of 1787

• Article IV, sec. 3, cl. 2, the Property Clause
• The Congress shall have the power to dispose
  of and make all needful rules and regulations
  respecting the territory or other property
  belonging to the United States

• 5. That the said lands shall be granted and
  settled at such times and under such regulations
  as shall hereafter be agreed on by the United
  States in Congress assembled.

16
The federal government under the Constitution
... is the government of all its powers are
delegated by all it represents all, and acts for
all, McCulloch v. Maryland, 17 U.S. 316, 1819
17
(The Constitution) is to have a fixed, uniform,
permanent construction. It should be, so far at
least as human infirmity will allow, not
dependent upon the passions or parties of
particular times, but the same yesterday, to-day,
and for ever. Joseph Story, Commentaries on
the Constitution, 1833
18
Whenever the United States shall have fully
executed these trusts, the municipal sovereignty
of the new states will be complete, throughout
their respective borders, and they, and the
original states, will be upon an equal footing,
in all respects whatever, Pollard v. Hagan, 44
U.S. 212, 1845
19
Upon the acquisition of a territory by the
United States, whether by cession from one of the
states, or by treaty with a foreign country, or
by discovery and settlement, the same title and
dominion passed to the United States, for the
benefit of the whole people, and in trust for the
several states to be ultimately created out of
the territory.Shively v. Bowlby, 152 U.S. 1,
1894
20
(S)o far as it relates to the public lands
within a new State, (federal power) amounts to
nothing more nor less than rules and regulations
respecting the sales and disposition of the
public lands. Coyle v. Smith, 221 U.S. 559,
1911
21
Given the historical record, and certain
decisions from judicial record which would seem
to comport with that historical record, as we
have now seen, is it at all possible that the
federal trust respecting the public lands in the
western states actually permits 1. The
exercise of a complete and unlimited federal
legislative power analogous to the police
powers of a state but for the fact that these
powers are exercised under color of the Supremacy
Clause, and2. Permanent retention of the public
lands is federal ownership?
22
Where constitutional principles are involved,
uniformity was intended. U. S. v. Holt State
Bank, 270 U.S. 49, 1926